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April 26, 2008

A strong argument for limiting prosecutorial immunity

In this commentary over at Reason, titled "Suing the DA: Should prosecutors be immune from civil lawsuits?", Radley Balko makes a strong case for affording prosecutor only qualified immunity, rather than absolutely immunity, for their official behavior. Here are excerpts from the strong piece:

There's plenty of evidence that this [absolute immunity] shield from accountability is allowing some prosecutor's offices to run roughshod over civil rights. The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions....

Downgrading prosecutorial immunity would not only go a long way toward puncturing the air of invincibility that pervades some prosecutors' offices, but the discovery process in the cases that are allowed to go forward might reveal other cases of misconduct or wrongful conviction.

We shouldn't allow every aggrieved defendant to sue his prosecutor. But in cases where someone is exonerated after being convicted of a crime, where there's clear evidence that something went terribly wrong at trial, and certainly where a single prosecutor has overseen more than one exoneration, allowing civil rights suits against these government officials in their capacity as government employees might shine some needed — if uncomfortable — sunlight on a part of the criminal justice system that has for too long been immune from real accountability.

"Fixing our criminal sentencing system"

The title of this post is the title of this op-ed from the Boston Globe today. Here are some excerpts:

A number of news stories this spring have shown us that the criminal sentencing system is out of line - both in Massachusetts and in the nation as a whole. The United States has not just the highest rate of incarceration in the world, but also one-fourth of all of the prisoners in the world.

What has led us to this? And what is it about our priorities that has us spending more on incarceration than higher education?...

When you look across the vast spectrum of crimes committed each year, so many of them can be traced back to drug and alcohol abuse and addiction. This is no secret, nor is the fact that more than 20 years of get-tough policies have not made a difference in drug-related crimes....

So what can we do this year, while the budget and the laws are still being written, and before our legislators recess for a season of campaigning?

None of these ideas suggest that we should be soft on crime. Rather, they represent measures that are smart on crime in ways that Massachusetts can afford — and will be more effective in reducing future crime than the status quo.

Looking at post-Baze realities in Florida

Yesterday's broadcast of NPR's "All Things Considered" had this segment titled "Opponents Challenge Death Penalty in Florida." Here is the summary:

Florida officials are eager to resume carrying out death penalties following this month's Supreme Court decision, which found that Kentucky's use of lethal injection does not constitute cruel and unusual punishment. State officials say Florida's lethal injection protocols follow what the Supreme Court approved in Kentucky. But attorneys for death row inmates say Kentucky is different from Florida.

April 25, 2008

Deep weekend thoughts from SSRN

What looks like a deep and interesting paper for weekend reading can be found here via SSRN. The paper is titled "Facing the Consequences: The Abolitionist Challenge," and here is the abstract:

I argue that standard consequentialist considerations offered in support of punishment make for a weaker case than is usually assumed. This is because consequentialist arguments for punishment rely on an overly broad conception of punishment that overlooks some of punishment's essential characteristics. I argue in favor of a narrower conception that highlights the possibility of substantive, non-punitive alternatives to punishment capable of securing many of the same good consequences as punishment. In light of this possibility, I argue, Abolitionism, the view that punishment is unjustified, poses a serious challenge to consequentialist justifications of punishment.

Intriguing Second Circuit ruling on sentencing rationales

Issuing an opinion that is not easily summarized (but involves state-federal disparities and co-defendant disparities), the Second Circuit sends us into the weekend with some thoughtful musings in its sentence reversals in US v. Williams, No. 05-4416 (2d Cir. Apr. 25, 2008) (available here). Here is the first paragraph of the opinion to whet Booker reasonableness appetites:

This is an appeal by the United States from judgments, which were entered in the United States District Court for the Southern District of New York, convicting the defendants Brian Williams and Samuel Shuler on their pleas of guilty to conspiracy to possess with the intent to distribute crack cocaine. The appeal challenges the sentences imposed on the defendants by Judges McMahon and Brieant. Judge McMahon sentenced Williams principally to a period of incarceration of 36 months, and Judge Brieant sentenced Shuler principally to a period of incarceration of 40 months. While the range prescribed by the Sentencing Guidelines is now 57 to 71 months, at the time the sentence was imposed it was 70 to 87 months. The manner in which the significantly lower sentences were justified provides the basis for the appeal.

Panty raid involving a sex offender

This local story provides a little (perverted?) levity at the end of a long work week:

Petaluma police officers seeking an explanation for why women's panties were discovered during a routine search of a male sex offender's home learned the underwear had been acquired from a surprising source. Larry Allen Riebli, 45, is believed to have taken the garments from homes for sale during open houses, police said.

Riebli, who is on probation for a conviction for annoying or molesting a child, admitted taking the underwear during a search Tuesday of his Baywood Drive home, police said. The panties were part of a cache of 25 to 30 pairs, about 20 of them purchased from stores, a handful bought from prostitutes and the remainder allegedly taken from houses up for sale, Deputy Sonoma County District Attorney James Patrick Casey said.

April 24, 2008

Wesley Snipes gets 3-year max prison sentence urged by prosecutors

This ABCNews report indicates that a federal sentencing judge today decided to max out Wesley Snipes for his tax evasion convictions:

A Florida judge sentenced the "Blade" movie star to 3 years in jail today. Snipes was convicted of tax fraud in February for not filing his income taxes for at least three years....

In February, a federal jury convicted Snipes on three misdemeanor counts of failing to file a tax return. Jurors acquitted Snipes of felony tax fraud and conspiracy charges that carry more significant punishment upon conviction. Had he been found guilty of all charges filed against him, Snipes could have faced up to 16 years in prison.

Thanks to the wonders of the web, everyone can access the defense sentencing memorandum asking for a sentencing of probation at this link. In addition, The Smoking Gun has available here the letters written to the sentencing judge by Denzel Washington and Woody Harrelson.

As for predictions, I would guess that the sentencing judge will split the difference here: I do not think Snipes will escape with probation, but I also doubt he will get the three-year max prison term. In other words, I think the smart money would be on a prison sentence somewhere in the range of 12 to 24 months. But I am really just guessing.

Why aren't the terrorist pardons during the Clinton Administration garnering more attention from the MSM?

Because I look at much of the news from a criminal justice perspective, I find the complaints that the MSM is biased against Senator Clinton to be somewhat comical given the "free pass" she has gotten on a lot of questionable criminal justice decisions made during the Clinton Administration. The most obvious example of these realities comes from the attack on Senator Obama concerning connections to a member of the Weather Underground and toughness on terrorism. If this is a serious campaign issue, the mainstream media ought to be closely re-examining at, and asking Senator Clinton hard questions about, the pardons given during the Clinton Administration to two Weather Underground members and to members of a group of PuertoRican terrorists (FALN).

Fortunately, some thoughtful bloggers are trying to make sure these pardon issues does not get lost in all the obsession over Senator Obama. The blog Pardon Power, helpfully, has had an on-going series of effective posts on this front, including recently:

My sense from reading these posts (combined with knowing a bit about a lot of ugly stories surrounding President Bill Clinton's various pardon decisions) leads me to think there might by a lot more to discover if the media we to do some serious investigative journalism about these pardons and Senator Clinton's possible input. Sadly, I do not get the sense, even with seemingly endless discussion of the Democratic race, that many in the MSM are seriously trying to develop new stories rather than just recycling the standard narratives.

Assessing the constitutional war over the death penalty

Edward Lazarus has this new piece at FindLaw, titled "Five Decades of Fighting Over the Constitutionality of the Death Penalty: What Can We Learn from This Lengthy War?". Here is how it starts:

These days, when one speaks of a "war without end," the reference is usually to Iraq. But in the legal world, the phrase also provides an apt description of the five-decade-long fight over the constitutionality of the death penalty.

Last week's decision in Baze v. Rees, in which the Court rejected a challenge to Kentucky's three-drug protocol for carrying out lethal injections, is just the latest painful yet inconclusive battle. Like the Court's many dozens of death penalty decisions, issued over the last 45 years, the decision in Baze ensures only that the larger war will continue and that the Court's own internal culture will continue to be one of its casualties.

USSC has first cut of data on crack retroactivity

I am very pleased to report that the US Sentencing Commission has available here the first release of data on the retroactive application of the crack amendment on its website. Here is how the data is described:

A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The data represent cases received and coded by the Commission by April 14, 2008.

I have reason to believe that this data will be regularly updated, perhaps every month. Such updates may be very important because, when looking through this data and hearing case-processing stories from different regions, it seems likely that different districts are taking different approaches to the order in which they address crack retroactivity cases. Some districts, it seems, may be trying to process denials before grants, others vice versa, and still others using other methods for case triage. Obviously, different case-processing plans could produce short-term (but perhaps not long-term) differences in district data that do not really represent substantive differences in how these crack retroactivity cases are being adjudicated.

UPDATE: A local angle on this data is reported in this local news story, headlined "Western Va. district leads U.S. in resentencing crack cases."

Why the government is eager to imprison Wesley Snipes

Forbes.com has this new piece, headlined Wesley Snipes And The TaxDef War," which spotlights why the government sees the Snipes case as one of the most important tax evasion cases in recent memory:

When Wesley Trent Snipes is sentenced Thursday in an Ocala, Fla., courtroom for willfully failing to file federal income tax returns, more than the 45-year-old star's freedom will be on the line. Also at risk will be the government's efforts to staunch the spread of what it recently re-branded "tax defiers."

Tax defiers — or "tax protesters" as they've traditionally been known — glom onto one kooky, discredited theory or another as to why the income tax is illegal or doesn't apply to them personally or doesn't cover their normal sources of income. (Example: Only foreign income, or only earnings of federal employees are taxable.) They typically file returns showing zero income or simply stop filing. Sometimes, they also put in claims for refunds of taxes they paid before their conversions, as Snipes did.

Just this month Nathan J. Hochman, the assistant attorney general in charge of the U.S. Department of Justice Tax Division, launched a new national initiative (TAXDEF for short) to bolster and better coordinate criminal and civil actions against tax defiers. Why now? Hochman said in an interview he's worried that defiers are now spreading their ideas "virally" through the Web.

"They're not just based in some small cities and having meetings in motel conference rooms with a relatively small number of participants," he said. "They can promote their product across the United States literally overnight in a way that was physically impossible to do back in the mid 1990s." Criminal convictions are particularly important, Hochman observed, because word of them "spreads virally" too. "To lose one of these cases has significance as much as winning it does," he added.

While the government didn't exactly lose the Snipes case, it wasn't a pure win either. On Feb. 1, a jury acquitted him of two felony charges related to false refund claims and three of six misdemeanor failure-to-file charges, finding him guilty of not filing his 1999, 2000 and 2001 returns. (Two Snipes co-defendants who sold him the tax protest ideas were convicted on felony charges. At the trial, Snipes' lawyers argued he was a victim who took and believed the bad advice of others.)

Federal prosecutors now say Snipes should get the maximum three-year prison term allowed for his convictions, not only because of the amount of money involved — $14 million in gross unreported income in 1999, 2000 and 2001 alone — but also because of the problematic publicity generated by the split decision in his case.

Daniel R. Meachum, a Georgia attorney representing Snipes, told Forbes he'll argue that Snipes "does not need to be incarcerated. He is not some criminal that poses a threat to society." Meachum added that Snipes has made arrangements to pay the amount of back taxes his forensic accountants believe is owed. He declined to say how much that is, but acknowledged that it is not a number that has been agreed to by the government.

In their sentencing memo, prosecutors contend that the decision "has been portrayed in the mainstream media as a 'victory' for Snipes," and urge the judge to "send a message that Snipes did not 'beat the rap.' " To back up their claim, the prosecutors cite a New York Post headline: "Snipes is Now Tax-Free, Beats Heavy Rap and Walks With Wrist $lap." Even worse, the prosecutors assert, "Snipes' fellow tax defiers have been emboldened by his alleged 'victory' in this case." The defiers, the government says, consider the split decision "as a vindication of anti-tax theories and a 'win' that will attract additional converts into their movement."

Examining America's affinity for incarceration

Adam Liptak has this new piece in the New York Times, headlined "Inmate Count in U.S. Dwarfs Other Nations’." Here are excerpts:

The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.

Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.

Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences....

There is little question that the high incarceration rate here has helped drive down crime, though there is debate about how much.

Criminologists and legal experts here and abroad point to a tangle of factors to explain America’s extraordinary incarceration rate: higher levels of violent crime, harsher sentencing laws, a legacy of racial turmoil, a special fervor in combating illegal drugs, the American temperament, and the lack of a social safety net. Even democracy plays a role, as judges — many of whom are elected, another American anomaly — yield to populist demands for tough justice.

Whatever the reason, the gap between American justice and that of the rest of the world is enormous and growing.....

Of course, sentencing policies within the United States are not monolithic, and national comparisons can be misleading. “Minnesota looks more like Sweden than like Texas,” said Mr. Mauer of the Sentencing Project. (Sweden imprisons about 80 people per 100,000 of population; Minnesota, about 300; and Texas, almost 1,000. Maine has the lowest incarceration rate in the United States, at 273; and Louisiana the highest, at 1,138.)

April 22, 2008

New paper on blended juve sentencing

Now appearing on SSRN is this interesting new piece providing an empircal perspective on a "new juvenile sentencing innovation, blended sentencing." The piece is titled "Who Gets a Second Chance? An Investigation of Ohio's Blended Juvenile Sentence," and here is the abstract:

During the early 1990s, many state legislatures made sweeping changes in the dispositional and sentencing options available to juvenile courts, including the introduction of a new juvenile sentencing innovation, blended sentencing. Blended sentencing emerged during a period of steadily increasing violent juvenile crime as a compromise between those who wanted to emphasize public safety, punishment, and accountability of juvenile offenders and those who wanted to maintain or strengthen the traditional juvenile justice system. The purpose of the present paper is to examine the practice of blended sentencing in Ohio. Our objective is to identify the factors that influence the probability that juvenile offenders will be processed as conventional juvenile or as blended sentencing cases (referred to as a Serious Youthful Offender or SYO in Ohio) or transferred to the adult criminal justice system.

Using data from over 600 juvenile cases in Ohio, we propose a multinomial regression model to predict factors associated with the various dispositional case processing options. From these data we found, that, all other things being equal, non-white juvenile offenders were significantly less likely than white offenders to be SYOs as opposed to being transferred. While some policy makers advocate that blended sentencing options as are currently in use be discontinued, we suggest that the most promising option to rationalize the use of blended sentencing and to avoid disparities in its use is to incorporate the principal of risk in its application.

Big efforts to reverse Second Circuit white-collar sentence reversal

Last month, as detailed in this post, the Second Circuit issued a long opinion in US v. Cutler, No. 05-2516 (2d Cir. Mar. 17, 2008) (available here), which reversed a pair of below-guideline sentences for white-collar offenders as procedurally and substantively unreasonable. As documents in the series of filings set forth below, both defendants who had their below-guideline sentences reverse andthe New York Council of Defense Lawyers are urging the Second Circuit to rehear this case en banc.

A counsel(-less) perspective on crack retroactivity

This news article, headlined "Failure emerges in call for shorter crack sentences: Many inmates are not given lawyers," reports on an interesting (and troublesomely disparate) aspect of the implementation of the USSC's new crack guidelines:

As federal courts begin deciding whether thousands of prisoners should receive shorter crack cocaine sentences, some judges are telling convicts that they won't get lawyers to help them argue for leniency. As a result, some prisoners are being left to argue on their own against skilled prosecutors, raising questions about fairness in cases that already have been widely perceived as unjust.

The recalculations come after a 20-year debate over racial disparities in cocaine sentences. Most crack cocaine defendants are black; most powder cocaine defendants are white and receive much less severe sentences. In what's seen as a first step toward addressing the disparity, the U.S. Sentencing Commission issued new recommendations last year for lighter penalties.

But many of the 20,000 eligible prisoners say they're too poor to hire lawyers to ask for shorter sentences. Many judges have appointed federal defenders to represent poor prisoners, saying it ensures the requests will be handled efficiently. Judges have the sole authority to appoint those attorneys. Other judges, however, have said attorneys aren't needed for what should be a straightforward sentencing matter.

The right to an attorney after criminal indictment and during trial and sentencing is undisputed. But several federal appeals and district courts have concluded that judges generally don't have to appoint attorneys for convicted criminals who are seeking corrected sentences. Without lawyers, some defendants with legitimate requests will be overlooked, said federal defenders who are screening many of the crack cocaine cases. "We're being left to fend for ourselves," said Eyvonne Garrett, 40, a prisoner in Ft. Worth, Texas, who was denied an attorney and a shorter sentence. "Without an attorney, we don't have a voice."...

Jason Hawkins, an assistant federal defender in Dallas, said Garrett appeared to be making a legitimate argument but couldn't compete against experienced prosecutors. "Not appointing counsel allows the government to run over people as if they're mere speed bumps in this process," he said. "A litigant with very little schooling is not going to be able to go up against a career prosecutor filing 24-page briefs."

UPDATE: Steve Sady now has this long post on this topic at the Ninth Circuit Blog. The post's heading provides a sense of his perspective: "Counsel Required For Fair And Efficient Implementation Of The Retroactive Crack Amendment."

Federal prosecutors going hard after Wesley Snipes' tax "advisors"

This local article provides the latest news coming from the upcoming sentencing of Wesley Snipes and his co-defendants for tax evasion. Here are some details:

Federal prosecutors are seeking a prison term of 10 years for Eddie Ray Kahn, one of two co-defendants of actor Wesley Snipes in a tax evasion scheme. In a sentencing memo filed Sunday, Robert E. O'Neill, U.S. Attorney for the Middle District of Florida, called on Senior U.S. District Judge William Terrell Hodges to sentence Eddie Ray Kahn to 10 years in prison. O'Neill also sought a sentence for a second co-defendant, Douglas Rosile, of between six and eight years.

On Feb. 1, an Ocala jury found Snipes guilty of three counts of willfully failing to file tax returns, but also acquitted him of felony conspiracy and tax fraud charges and three additional counts of failure to file. The jury convicted Kahn and Rosile on the same felony charges. All three men are scheduled to be sentenced at 9:30 a.m. Thursday.

O'Neill is seeking a sentence of three years in prison for Snipes — the maximum possible — and a fine of at least $5 million against the actor. Snipes was a member of Kahn's Mount Dora-based American Rights Litigators. Prosecutors have described ARL and its successor company, Guiding Light of God Ministries, as nothing more than illegal tax-evasion schemes....

In the sentencing memo for Kahn and Rosile, O'Neill described both men as "incorrigible tax offenders for whom significant prison sentences are warranted." The memo indicates Kahn formed and sold memberships in ARL, even after he was convicted of willfully refusing to file his own returns and served a three-year prison term....

The memo notes that at least nine other members of ARL or Guiding Light of God Ministries have been convicted in separate criminal tax cases around the country, and that at least two more such trials are pending. Because of Snipes' celebrity, the sentences imposed in the case could "increas(e) tax compliance on a national scale," the memo said. "This may be particularly true of the many customers of tax-defiance organizations, who cannot all be criminally prosecuted due to limited government resources."

Of course, the constitutionality of capital child rape is being contemplated by the Supreme Court right now in the Kennedy case. And headlines like these might make it just a bit more likely that the Justices will not prevent from expanding the death penalty in this way.

Interesting historical look at the length of prison sentencing

Recently appearing on SSRN is this interesting new piece providing a distinct window into a notable period in the history of prisons and prison sentences. The piece is titled "The Origin of Long Prison Sentences in America: A Case Study of Pennsylvania, 1829-1865," and here is the abstract:

Penal historian David J. Rothman has described early American prison sentences as "very long" while French emissaries Gustave de Beaumont and Alexis de Tocqueville, writing in 1833, described the American penitentiary system as "severe." Though there exists a rich body of literature interpreting the birth of the prison, few scholars have written on the length of prison sentences that accompanied this birth. Using the length of prison sentences assigned to 1,727 convicts sentenced to the Eastern State Penitentiary in Pennsylvania in a dozen years falling between 1829 and 1865, this study investigates how long prison sentences were in Pennsylvania, what factors (race, age, gender, nationality, state of origin, recidivist status) affected sentence length, and how sentence length changed over time. Additionally, it compares Pennsylvania‘s sentence lengths to other American states to determine how representative Pennsylvania‘s prison sentences were of American prison sentences generally. Finally, it compares Pennsylvania‘s sentence lengths to those of Great Britain. While acknowledging the difficulty in comparing prison sentence lengths of different penal regimes in different states or countries, this study determines that Pennsylvania generally distributed shorter sentences than most other American states, but longer sentences than those in Great Britain. These quantitative differences are then situated in the "American exceptionalism" debate regarding contemporary penality in the United States and abroad.

Can we thank Judge Posner for the latest ACCA cert grant?

I see now from this post at SCOTUSblog that the Supreme Court's new ACCA case on its docket comes from the Seventh Circuit in a case in which, as detailed here, Judge Posner was in fine form. The case is US v. Chambers, and SCOTUSblog as all the cert papers assembled here for those interested in seeing the back-story for the latest trip into ACCA-land.

Eleventh Circuit reverses sentence "impermissible factor"

The Eleventh Circuit has reversed a short probation revocation sentence US v. Velasquez, No. 06-16637 (11th Cir. Apr. 21, 2008) (available here) because the judge relied on an "impermissible factor." Here are the highlights:

Wilber Guillermo Velasquez Velasquez appeals his nine-month sentence for violation of his supervised release. Velasquez’s sole argument on appeal is that his sentence was based on the district court’s disapproval of the fact that immigration officials had released him on bond pending the outcome of his asylum proceedings. Velasquez argues that the district court exceeded its statutory sentencing authority by basing his sentence on this fact. We agree. Whether he should have been detained or released during the pendency of his immigration proceedings was a matter for an immigration judge to decide, and the district court lacks jurisdiction over immigration matters. We vacate his sentence and remand for resentencing....

In reviewing the reasonableness of a sentence imposed after conviction, we review de novo, as a question of law, whether a factor considered by the district court in sentencing a defendant is impermissible. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). “A sentence that is based entirely upon an impermissible factor is unreasonable because such a sentence does not achieve the purposes of § 3553(a).” United States v. Lorenzo, 471 F.3d 1219, 1221 (11th Cir. 2006).

Here, the district court imposed Velasquez’s sentence as if it were reviewing (and overturning) the IJ’s decision to release Velasquez on bond pending his immigration proceedings. However, the district court lacks the authority to do so.

Another ACCA case and the Baze aftermath from SCOTUS

Lyle Denniston in this post at SCOTUSblog provides a report on the SCOTUS order list this morning, which includes yet another ACCA cert grant and some of the post-Baze fall-out:

The Supreme Court agreed on Monday to rule on the government’s power to impose “anti-dumping” import fees on foreign goods that are re-manufactured from U.S. raw materials, and returned to the U.S. at a low price. The Court also granted a second case, testing whether a failure to report to prison that leads to a conviction for escaspe can be the basis for enhanced sentencing under the Armed Career Criminal Act.

In a series of orders following up its ruling last week allowing states to use the lethal injection method of capital punishment, the Court simply denied review of 11 appeals by death-row inmates. Justic e John Paul Stevens noted in two of the case that denial of review was not the same as a rejection of the inmates’ legal challenges on the merits. Although some inmates have claimed that the procedure in their states differs in some ways from the procedure upheld by the Court in Baze v. Rees, the Court did not order lower courts in any of the 11 cases to reconsider and take Baze into account.

Looking at the Justices' methods in Baze

At FindLaw, Michael Dorf has this new essay, titled "How the Supreme Court's Lethal Injection Ruling Elevates Appearances Over Reality." Here is how it starts:

Last week, in Baze v. Rees, the U.S. Supreme Court rejected a constitutional challenge to Kentucky's administration of the death penalty via lethal injection. To say that the case divided the Justices would be a gross understatement. There was no opinion for the Court as a whole, and the nine Justices wrote a total of seven separate opinions.

In the short term, the Baze decision will result in the resumption of executions, which had been subject to a de facto moratorium since the Court agreed to hear the case. In the long term, the decision's likely impact is unclear.

The controlling opinion of Chief Justice Roberts finds insufficient evidence in the record to support a conclusion that Kentucky's administration of its three-drug lethal injection poses a "substantial risk of serious harm," and thus to warrant the Court's ruling that it constitutes cruel and unusual punishment in violation of the Eighth Amendment. However, the Chief Justice's opinion leaves open the possibility that such evidence might be found in a different case from a different state. For the next few years, therefore, we are likely to see challenges to the application of lethal injection in various states, and eventually the issue may return to the Supreme Court.

Whatever the ruling's ultimate practical impact may be, however, the Baze decision is important for the mode of reasoning the Court employs. The controlling opinion by Chief Justice Roberts — joined by Justices Kennedy and Alito — appears to endorse the proposition that the state can expose people to an increased risk of an excruciating death on what amount to merely aesthetic grounds.

April 20, 2008

"Retributive Justice in the Real World"

The title of this post is the title of an interesting-looking article by Professor Michael Cahill, available at this link. Here is the abstract:

In 2003, Attorney General John Ashcroft announced a set of Department of Justice (DOJ) policies designed to curtail federal prosecutors’ discretion to plea bargain. The new DOJ rules sought to ensure uniform criminal punishments and prevent criminal offenders from cutting deals to avoid deserved punishment. Yet the would-be ban on bargaining seems to have had little, if any, effect. Such a result is hardly surprising, as the policy’s spirit of pursuing justice at all costs, however noble, is unworkable if the pursuers cannot actually pay all costs. Limitations of budget, resources, or evidence inevitably demand some compromises, such as a tradeoff between seeking the maximum punishment for each offender and ensuring some punishment for all offenders. Because Ashcroft’s memorandum could not articulate clear rules for how or when prosecutors could take these practical constraints into account, the result was more business as usual: unguided and unreviewable exercises of prosecutorial discretion in individual cases.

Both the adoption and the failure of the DOJ antibargaining policy underscore a significant but often-ignored difference between the two major theories of criminal law, utilitarianism and retributivism. The policy reflected the aspirations of a retributive-justice agenda, seeking fair, uniform, and deserved punishment for all offenders. Yet the policy also reflected the limitations of such an agenda, highlighting its restricted scope relative to that of the rival utilitarian theory. In a meaningful way, utilitarianism provides a complete theory of criminal justice, while retributivism apparently does not.

"The Eighth Amendment is a jurisprudential train wreck" is how Benjamin Wittes justifiably started this terrific article, entitled, "What is cruel and unusual?", appearing in the December 2005-January 2006 issue of Policy Review. I basically agreed then, and still agree now, with this attack by Wittes on modern Eighth Amendment jurisprudence:

The Supreme Court's case law has left the amendment without coherent meaning. No principle guides its reach. No methodology solemnly pronounced in any case do the justices predictably follow in the next. A punishment upheld today can be, without alteration, struck down tomorrow with no justice even admitting that his or her mind has changed. The justices no longer even pretend to examine whether a punishment offends the amendment's textual prohibition. Instead they apply perhaps the single most impressionistic test ever devised by the court: whether the challenged practice has run afoul of "the evolving standards of decency that mark the progress of a maturing society." Unsurprisingly, nine judges of wildly different politics, temperaments, and backgrounds do not generally agree on the standards or the methodology for assessing society's maturation, much less its substance.

For this reason (and some others), I have been hoping (as suggested here) that Chief Justice Roberts might come to the Court with some fresh ideas for a stale and rotting jurisprudence. Consequently, I was very excited to read the oral argument transcript in the Kennedy child rape case to discover that the Chief was a very active questioner. From the transcript, I got the impression that the Chief is troubled by the Court's standard state-counting approach to "evolving standards of decency" most recently applied in Atkins and Roper.

In addition, because I believe it is valuable and important to distinguish between offense conduct and offender characteristics in all areas of sentencing jurisprudence (as explained in this Stanford L. Rev. article), I was especially excited to see the Chief exploring an offense/offender distinction for Eighth Amendment adjudication (see tr. at pp. 19-20). I very much like the idea that the Justices ought to be very deferential to legislatures concerning what offenses merit harsh punishments, but much less deferential as to what offenders merit harsh punishment. I am hoping (perhaps foolishly) that the Chief will use the Kennedy case as an opportunity to try to re-engineer Eighth Amendment jurisprudence along these lines.

District Judge finds AWA registration provision unconstitutional

Thanks to this piece from the Orlando Sentinel, I see that US District Judge Gregory Presnell late last week reach a notable constitutional conclusion about the Adam Walsh Act's sex offender registration provisions. From the news report:

An Orlando federal judge has ordered the release of two jailed, out-of-state sex offenders who moved to Florida, ruling that part of the Adam Walsh Act requiring their registration is unconstitutional. U.S. District Judge Gregory Presnell on Friday ruled that the 2006 federal law requiring state sex offenders to register with law-enforcement officials when they move across state lines was largely a local issue.

The ruling, made in two unrelated sex-offender cases pending in Orlando, led to the dismissal of charges against Robert D. Powers, 43, and Tommy William Buckius, 60, both of Orlando....

The ruling in US v. Powers, No. 6:07-cr-221-Orl-31(M.D. Fla. April 18, 2008), is available at this link. Here is Judge Presnell's concluding paragraph:

As the Government notes, the Adam Walsh Act was enacted with a commendable goal — to protect the public from sex offenders. However, a worthy cause is not enough to transform a state concern (sex offender registration) into a federal crime. If an individual’s mere unrelated travel in interstate commerce is sufficient to establish a Commerce Clause nexus with purely local conduct, then virtually all criminal activity would be subject to the power of the federal government. Surely our founding fathers did not contemplate such a broad view of federalism. Accordingly, the Court finds that the adoption of the statute under which Defendant is charged violates Congress’ power under the Commerce Clause and is, therefore, unconstitutional.

The government will surely appeal this ruling, and I know some other district courts have already upheld the constitutionality of these provisions of the AWA. It will only be a matter of time before we get some circuit law (and perhaps some circuit splits) on the reach and application of the AWA. Stay tuned.